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Thursday, 14 October 2010

Evidence "not a question of principle", so no appeal

In anearlier post, PatLit reported on Molnlycke Health Care v BSN Medical Ltd [2010] EWCA Civ 988, in which the Court of Appeal for England and Wales dismissed an appeal against a refusal to stay UK proceedings on the basis that a Swedish court was already seised of the matter in dispute. Jacob LJ said then that, when the matter first came before his court, it was not entirely clear from the papers whether the Swedish court was seised with the same issue as that in the English proceedings. The court approached the Swedish judge, who responded "immediately and helpfully in that spirit of cooperation between European judges which could not have existed even 20 years ago". The immediate and helpful response was that she was seised of different issues. The UK action would not therefore be stayed.

BSN then sought permission from the Court of Appeal to lodge a further appeal to the Supreme Court. Jacob LJ (giving the Judgment of the Court) has refused that request. As Jacob LJ explained:

"1. The Court has considered a number of written representations from the solicitors for BSN seeking permission to appeal to the Supreme Court from our decision of 30th July 2010. No application for such permission was made at the time we gave that decision, though it obviously could have been.

2. The case turned on whether the Swedish Court was first seized of the issue of whether or not the Mölnlycke patent claim covered the BSN actual products. We asked the Swedish Judge whether that was in issue and got a clear answer – not “as the case stands now.”

3. The matter relied upon for permission to appeal concerns communications between the Swedish Judge and the lawyers for BSN subsequent to our decision and a subsequent decision in Germany. The suggestion is that these materials show that the Swedish court may be seized of the issue.

4. Whether it is already so seized turns entirely on the evidence. As the evidence stood before us it was clearly not so seized. No question of principle - still less one of general importance – arises.

5. For that reason we refuse permission to appeal to the Supreme Court".